Eugene Walter Hand v. State

• Court: Court of Appeals of Texas
• Decided: October 31, 2013
• Docket: 02-12-00067-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00067-CR

EUGENE WALTER HAND APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

MEMORANDUM OPINION 1

Appellant Eugene Walter Hand appeals his third-degree felony conviction

and his fifteen-year sentence for driving while intoxicated (DWI). 2 We affirm.

1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2012). Although driving while intoxicated with two prior convictions for the same offense is a third-degree felony, appellant was subject to a second-degree felony punishment range because he had been previously convicted of a felony offense. See id. § 12.42(a) (West Supp. 2012). A grand jury indicted appellant with committing DWI; his indictment alleged

that he had been previously convicted of two misdemeanor DWIs and one felony

DWI. The trial court appointed counsel to represent appellant. Appellant

stipulated to his two prior misdemeanor DWI convictions and pled not guilty.

After the parties selected a jury through voir dire and presented evidence, the

jury found appellant guilty. Appellant pled true to the indictment’s felony

enhancement paragraph, and following the parties’ presentation of evidence

during the punishment phase of the trial, the jury assessed appellant’s

punishment at fifteen years’ confinement. The trial court sentenced him

accordingly, and he brought this appeal.

Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. In the brief, counsel

avers that “this appeal is frivolous, as there are no grounds that could be argued

successfully on appeal.” Counsel’s brief and motion meet the requirements of

Anders v. California by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds for relief. 386 U.S. 738, 744–

45, 87 S. Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d 403, 406–12

(Tex. Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders). We

gave appellant an opportunity to file a pro se brief, and he did so. The State also

filed a brief.

Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

2 must independently examine the record. See Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991); Alexander v. State, 301 S.W.3d 361, 363 (Tex.

App.—Fort Worth 2009, no pet.). Only then may we grant counsel’s motion to

withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record, counsel’s brief, appellant’s pro se

brief, and the State’s brief. We agree with counsel that the appeal is wholly

frivolous and without merit; we find nothing in the record that might arguably

support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.

App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.

2006). Accordingly, we grant counsel’s motion to withdraw and affirm the trial

court’s judgment.

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 31, 2013